137-NLR-NLR-V-03-RAMALINGAM-et-al-v.-PUTHATHAI.pdf
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RAMALINGAM et cd. v. PUTHATHAI.C. R., Jaffna, 1,344.
1899.
August 23,
Thesavalamai of Jaffna—Husband, and wife—Alienation of land by wifewhen living separate from her husband—Sale for the sake ofmaintenance—Validiiy of deed.
According to the Thesavalamai of Jaffna, it is competent for awife who is separated from her husband to alienate, without herhusband joining in the deed, a land for the sake of procuringmaintenance for herself.
r I ''HIS was an action praying for a cancellation of a deed dated7th January, 1893, so far as it related to an undividedhalf share of certain lands, and for a declaration of title infavour of second plaintiff.
Plaintiff averred that one Viratai died intestate without issueleaving the defendant, her sister, and the second plaintiff, the onlydaughter of another sister (who had predeceased the intestate) asher heirs to the lands in question ; that the defendant, pretendingtitle to them by virtue of a deed which purported to have beenmade by Viratai in her favour, took wrongful possession of secondplaintiff’s share ; that the said deed was a forgery ; and that, evenif it was genuine, Viratai, at the time she made it, was a marriedwoman, and could not make it without her husband joining inthe grant.
The issues agreed upon were as follows :—
Was the deed of 7th January, 1893, genuine or a forgery ?
Was Viratai’s husband living with her at the date of thatdeed ?
If he was not living with her, should he have joined in thedeed in order to make it valid ?
If she was living with him, was the deed valid ?
The Commissioner held the deed was genuine; that Virataiwas separated from her husband at the time the deed was drawn,and had been so separated for some years ; and that her husbandneed not have joined her in the deed. He therefore dismissedplaintiff’s case.
Plaintiff appealed.
Sampayo, for appellant.
Cur. adv. vult.
28th August, 1899. Withebs, J.—
The Commissioner has found not only that Viratai signed theimpeached transfer, but that she signed it under the circumstancesrecited in the document as the occasion for her selling the lands
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1889,.
' August 28.Withers, J.
transferred by the document. That is to say, she was separatedfrom her husband, and according to the' recitatfe in the' documentsshe was compelled to sell the. lands to procure herself mainte-nance. That implies her husband’s assent.
The circumstances of this case differentiate it from the case ofSilva v. Dissanaike, D. C., Tangalja, No. 3; reported in 2 C. L. R.123, upon which the respondent’s counsel relied. I do not findthat the Thesavalamai provides for a similar case.
The other case relied: on for the respondent (Jaffna, 598,Anibalavaner v. Cunder, to be found in Mutukistna’s edition of theThesavalamai at p. ,293) is too meagrely reported to be of any use.
The chapter in the Thesavalamai intituled “ Gift or Donation ” isnot in point. The rule given there is that the wife, being subjectto the will of the husband, may not give anything away even outof ,her dowried property without her husband’s consent, but fromthe.context.it appears that that rule applies only when husbandand wife are living peaceably together. Besides, this documentpurports not to be a gift of Viratai’s dowried property, but anassignment for valuable consideration. The judgment is affirmed.